Southwest Regional Council Car v. Phil Limon ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHWEST REGIONAL COUNCIL OF No. 19-56047
CARPENTERS, et al.,
D.C. No.
Plaintiffs-Appellees, 2:17-cv-06582 DSF (MRWx)
v.
MEMORANDUM*
PHIL LIMON,
Defendant-Appellant.
Appeal from the United District Court
for the Central District of California
Hon. Dale S. Fischer, District Judge, Presiding
Submitted November 18, 2020**
Pasadena, California
Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,***
Senior District Judge.
Defendant-Appellant Phil Limon appeals from the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., United States Senior District
Judge for the Eastern District of California, sitting by designation.
determination that he was not deprived of a fair hearing in union disciplinary
proceedings, as guaranteed by the Labor-Management Reporting and Disclosure
Act of 1959, 29 U.S.C. § 401, et seq. (“LMRDA”). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Section 101(a)(5) of the LMRDA (as codified at 29 U.S.C. § 411(a)(4))
requires that union disciplinary proceedings be conducted in accordance with basic
procedural safeguards. The mere presence of union counsel during deliberations
does not amount to a per se violation; instead, whether the union’s lawyer
attempted to change the outcome is “a question of fact and credibility to be decided
by the trial court.” Bldg. Material & Dump Truck Drivers, Local 420 v. Traweek,
867 F.2d 500, 511 (9th Cir. 1989). The district court did not clearly err when it
determined that the presence of the union’s lawyer did not influence the decision of
any of the members. It also permissibly concluded that the union had a history of
making legal counsel available to its trial committees. Because these findings were
not clearly erroneous, the district court properly determined that a fair hearing was
afforded.
Ample evidence supports the district court’s conclusion that Limon was
guilty of the charges levied against him. Limon argues that when he selectively
distributed the proceeds of a grievance settlement, he was adhering to an
“unwritten rule” that should not have subjected him to discipline. The district
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court permissibly rejected this argument, however, finding that Limon did not
actually follow that alleged rule. Limon has pointed to no clear error underlying
this decision.
The district court properly found that a showing of “actual bias” on the
part of committee members was the correct standard and made permissible factual
findings that no such bias had been demonstrated. No extraordinary
circumstances here compelled the district court to presume bias otherwise. See
United States v. Olsen, 704 F.3d 1172, 1191-92 (9th Cir. 2013).
Nor is Limon’s challenge to the UBC’s constitutional prohibition against
“causing dissension” persuasive. The LMRDA “offers a considerably narrower
protection to speech than does the First Amendment.” Massey v. Inland Boatmen’s
Union of Pac., 886 F.2d 1188, 1190 (9th Cir. 1989). Member “speech can be
impaired by union rules if they are reasonable,” id., and rules prohibiting
dissension are reasonable in the union context. See, e.g., Ferguson v. Int’l Ass’n of
Bridge, Structural & Ornamental Iron Workers, 854 F.2d 1169, 1171, 1174 (9th
Cir. 1988).
Limon’s arguments that he should have been permitted to copy union
records and to challenge the dissolution of his local union chapter even after being
expelled from union membership necessarily fail as well. Because Limon was
permissibly expelled from the union, he lacks any injury in fact sufficient to confer
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standing to pursue such claims. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48
(2016).
AFFIRMED.
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